Texas Judiciary Online - HTML Opinion

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Opinion issued March 15,=20 2007

In The

Court of=20 Appeals

For=20 The

First=20 District of Texas

NO. = 01-05-00752-CV

MALCOLM = TROY EARVIN,=20 Appellant

DEPARTMENT OF FAMILY=20 AND

PROTECTIVE SERVICES,=20 Appellee

On = Appeal from the=20 315th District Court

Harris = County,=20 Texas

Trial = Court Cause=20 No. 2004-07007J

O P I N = I O=20 N

Following a bench trial, the = trial court=20 terminated the parental rights of Malcolm Troy Earvin, appellant, = to his=20 minor child, S.M.E., a/k/a S.S.M. In four points of error, Earvin = argues=20 that (1) the evidence is legally insufficient to support the trial = court's=20 decision to terminate his parental rights; (2) the evidence is = factually=20 insufficient to support the trial court's decision to terminate = his=20 parental rights; (3) his due process rights under the Fourteenth = Amendment=20 to the United States Constitution were violated by the court's = termination=20 of his parental rights; and (4) the court erred in naming = appellee, the=20 Department of Family and Protective Services (the Department), the = sole=20 managing conservator of S.M.E.

We affirm in part, and reverse = and render=20 in part.

Background

Earvin is the father of S.M.E. = Earvin was=20 dating S.M.E.'s mother at the time S.M.E. was conceived, but when = Earvin=20 learned of the mother's drug use, he broke up with her. S.M.E. was = born=20 with cocaine in her system in December 2003. After birth, both = S.M.E. and=20 the mother were transferred to a drug abuse treatment center. = During this=20 time, Earvin visited S.M.E., and brought her clothes, food, milk, = and=20 other things. During weekend releases, S.M.E. and her mother would = stay=20 with Earvin. Once the two were permanently released from the = treatment=20 center, Earvin was not able to get in contact with them and did = not know=20 where they were.

In March of 2004, Earvin = sustained a=20 severe injury to his leg, causing him much pain, limiting his = mobility,=20 and requiring substantial physical therapy. During this time, = Earvin was=20 unable to work. Three weeks before the trial, Earvin started = working=20 again.

In August of 2004, the = Department found=20 the mother and S.M.E. living in squalid conditions. The mother was = using=20 drugs again. The Department obtained temporary custody of S.M.E. = Earvin=20 was notified, and he attended the show cause hearing.

At the hearing, the court = ordered Earvin=20 to comply with all service plans developed by the Department in = order to=20 regain custody of S.M.E. Earvin failed to comply with almost all = of the=20 requirements in the Department's service plans. At the trial to = terminate=20 parental rights, the trial court ordered that Earvin's parental = rights be=20 terminated based on subsections 161.001(1)(D), (E), and (N) of the = Family=20 Code.

Legal=20 Sufficiency

In his first point of error, = Earvin=20 argues that the evidence is legally insufficient to support the = trial=20 court's termination of his parental rights.

A. Standard of=20 Review

The burden of proof at trial in = parental-termination cases is by clear and convincing evidence. = Tex. Fam.=20 Code Ann. =A7 161.001 (Vernon Supp. 2006); In re = J.F.C., 96=20 S.W.3d 256, 263 (Tex. 2002). Section 161.001 of the Texas Family = Code=20 provides the method by which a court may involuntarily terminate = the=20 parent-child relationship. Tex. Fam. Code Ann. =A7 161.001. Under = this=20 section, a court may order the termination of the parent-child=20 relationship if the court finds, by clear and convincing evidence, = that=20 (1) one or more of the acts enumerated in subsection 161.001(1) = was=20 committed and (2) termination is in the best interest of the = child.=20 Id. "Clear and convincing evidence" means the measure or = degree=20 of proof that will produce in the mind of the trier of fact a firm = belief=20 or conviction as to the truth of the allegations sought to be = established.=20 Tex. Fam. Code. Ann. =A7 101.007 (Vernon 2002); J.F.C., = 96 S.W.3d=20 at 264. This heightened burden of proof results in a heightened = standard=20 of review.

When determining legal = sufficiency, we=20 review all the evidence in the light most favorable to the finding = "to=20 determine whether a reasonable trier of fact could have formed a = firm=20 belief or conviction that its finding was true." J.F.C., = 96=20 S.W.3d at 266. To give appropriate deference to the factfinder's=20 conclusions, we must assume that the factfinder resolved disputed = facts in=20 favor of its finding if a reasonable factfinder could do so. = Id.=20 We disregard all evidence that a reasonable factfinder could = have=20 disbelieved or found to have been incredible. Id. This = does not=20 mean that we must disregard all evidence that does not support the = finding. Id. Disregarding undisputed facts that do not = support=20 the finding could skew the analysis of whether there is clear and=20 convincing evidence. Id. Therefore, in conducting a=20 legal-sufficiency review in a parental-termination case, we must = consider=20 all of the evidence, not only that which favors the verdict. = See City=20 of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005). The = natural=20 rights that exist between parents and their children are of = constitutional=20 dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. = 1985).=20 Therefore, termination proceedings should be strictly scrutinized, = and the=20 involuntary termination statutes should be strictly construed in = favor of=20 the parent. Id. at 20-21. However, "[j]ust as it is = imperative=20 for courts to recognize the constitutional underpinnings of the=20 parent-child relationship, it is also essential that emotional and = physical interests of the child not be sacrificed merely to = preserve that=20 right." In re C.H., 89 S.W.3d 17, 26 (Tex. = 2002).

B. Knowingly Allowing = the Child=20 to Remain in Dangerous Conditions and Endangering the Child: = Sections=20 161.001(1)(D), (E)

The Department does not argue = that the=20 evidence is legally and factually sufficient to support a = determination=20 that Earvin had violated subsections 161.001(D) or (E). Nor do we = find=20 that such a determination is possible. To support a ruling to = terminate=20 parental rights based on subsection 161.001(1)(D), the Department = was=20 required to prove that Earvin "knowingly placed or knowingly = allowed the=20 child to remain in conditions or surroundings which endanger the = physical=20 or emotional well-being of the child." See Tex. Fam. Code = Ann. =A7=20 161.001(1)(D). To support a ruling to terminate parental rights = based on=20 subsection 161.001(1)(E), the Department was required to prove = that Earvin=20 "engaged in conduct or knowingly placed the child with persons who = engaged=20 in conduct which endangers the physical or emotional well-being of = the=20 child." See id. =A7 161.001(1)(E).

Earvin testified without = contradiction=20 that while S.M.E. and her mother were in the drug abuse treatment = center,=20 he brought S.M.E. clothes, food, and milk. On the weekends that = S.M.E. and=20 her mother were released from the treatment center, they would = stay with=20 Earvin at Earvin's mother's home. Earvin stated that after S.M.E. = and her=20 mother were released from the treatment center, the mother = disappeared and=20 he did not know where she and S.M.E. were.

The Department argues that = Earvin lost=20 contact with S.M.E. and her mother when they left the treatment = center and=20 it shows that "he was well aware his child was in a precarious = situation=20 on the streets with a mother who had drug problems, yet he took no = action=20 to protect that child." This is not a proper characterization of = the=20 evidence, however. Earvin testified that when the mother left the=20 treatment center, he could not get in contact with her or S.M.E. = because=20 he did not know where they were. When he finally tracked them = down, S.M.E.=20 was already in the custody of the Department. None of this = evidence=20 suggests that Earvin took no action to protect S.M.E., that Earvin = endangered the child, or that he knowingly allowed the child to be = endangered. There is no other evidence in the record to establish = that=20 Earvin knowingly endangered S.M.E. or knowingly allowed her to be=20 endangered.

C. Constructive = Abandonment:=20 Section 161.001(1)(N)

To support a ruling to = terminate parental=20 rights based on subsection 161.001(1)(N), the Department was = required to=20 prove that (1) the child has been under the conservatorship of the = Department for not less than six months; (2) the Department has = made=20 reasonable efforts to return the child to the parent; (3) the = parent has=20 not regularly visited or maintained significant contact with the = child;=20 and (4) the parent has demonstrated an inability to provide the = child with=20 a safe environment. Id. =A7 161.001(1)(N). While we agree = with the=20 Department that the first three elements of constructive = abandonment have=20 been met, we do not agree that the Department met its burden on = the fourth=20 element.

As proof that it met its burden = on the=20 fourth element, the Department points to the following facts: (1) = Earvin=20 knew S.M.E.'s mother was on drugs while she was pregnant with = S.M.E.; (2)=20 Earvin did not attempt to take custody of S.M.E. while she and the = mother=20 were in the drug abuse treatment center; (3) Earvin "likely" had = little=20 interaction with S.M.E. after his severe leg injury; (4) Earvin = took no=20 action after determining that S.M.E. and her mother were "out on = the=20 street"; and (5) Earvin made little effort to visit the = child.

The fifth fact goes to the = third element=20 of constructive abandonment, and it does not show, as the statute=20 requires, that Earvin has demonstrated an inability to = provide=20 the child with a safe environment. The third and fourth facts are = based on=20 speculation. Earvin testified that while the child was in the = hospital and=20 the treatment center, he visited her regularly and brought her = clothes,=20 food, and milk, and that on the weekends, when the two were = released from=20 the treatment center, they would stay with Earvin. Once S.M.E. and = her=20 mother were permanently released from the treatment center, Earvin = testified that he could not contact them and did not know where = they were.=20 None of this establishes that he purposefully had little = interaction with=20 S.M.E. or that he took no action after they left the treatment=20 center.

The first and second facts are = similarly=20 unconvincing. The Department cites no authority that a parent has = an=20 obligation to attempt to take custody of a child when the mother = is in a=20 treatment center and subsequently released. Nothing in the record=20 indicates that Earvin was aware of the severity of the mother's = drug use=20 or knew or should have known that the mother would resume drug use = after=20 being released from the treatment center.

What the record does show, = however, is=20 that Earvin cared for S.M.E. while the mother was in the hospital = and the=20 treatment center, that Earvin had access to a home to provide for = S.M.E.,=20 and that he had obtained a job three weeks before trial. Even if = the trial=20 court, as the trier of fact, chose to disbelieve Earvin's = testimony as not=20 credible, this does not prove that the opposite is true. See = Lozano v.=20 Lozano, 52 S.W.3d 141, 150 (Tex. 2001); Am. Indus. Life = Ins. Co.=20 v. Ruvalcaba, 64 S.W.3d 126, 143 (Tex. App.--Houston [14th = Dist.]=20 2001, pet. denied).

D. Failure to Comply = with a Court=20 Order

In its brief, the Department = argues that=20 we can affirm based on subsection 161.001(1)(O), a ground not = listed in=20 the decree. We, however, are restricted to reviewing the = sufficiency of=20 the evidence presented under the specific statutory grounds found = by the=20 trial court in its termination decree. See Cervantes-Peterson = v.=20 Dep't of Family & Protective Servs., No. = 01-05-00307-CV,=20 __S.W.3d__, 2006 WL 2195241, at *6 (Tex. App.--Houston [1st Dist.] = Aug. 3,=20 2006, no pet.). Thus, we do not consider whether or to what extent = Earvin=20 failed to comply with the court ordered service = plan.

We hold that the evidence is = legally=20 insufficient to support a ruling that Earvin violated subsections=20 161.001(1)(D), (E), and (N) as found in the decree. We sustain = Earvin's=20 first point of error.^{=20
(1)}

Our reversal of the portion of = the trial=20 court's judgment denying Earvin's parental rights, in effect, = results in a=20 denial of the portion of the Department's petition seeking = termination of=20 Earvin's parental rights. Under Section 161.205 of the Family = Code, if the=20 court does not order termination of the parent-child relationship, = the=20 court shall (1) deny the petition for termination or (2) render = any order=20 in the best interest of the child. See Tex. Fam. Code = Ann. =A7=20 161.205 (Vernon 2002). Furthermore, section 263.404 of the Family = Code=20 allows the court to appoint the Department as managing conservator = of a=20 child without terminating parental rights if the court finds that=20 appointing the parent or a relative would not be in the best = interest of=20 the child. See id. =A7 263.404 (Vernon 2002).

In contrast to the facts = presented in=20 recent decisions of this Court, in which we remanded the case to = the trial=20 court, the trial court here made the required best-interest = findings to=20 support the appointment of the Department as sole managing = conservator of=20 S.M.E. Cf. Colbert v. Dep't of Family & = Protective=20 Servs., Nos. 01-04-01232-CV, 01-04-01233-CV, 01-05-00124-CV,=20 01-05-00126-CV, 01-05-00127-CV, 2006 WL 3752371, at *15 (Tex.=20 App.--Houston [1st Dist.] Dec. 21, 2006, no pet.) (trial court = made no=20 findings to support appointment of DFPS as conservator); = Walker v.=20 Dept. of Fam. and Protective Servs. No. 01-06-00253-CV, 2006 = WL=20 3751456, at *3 (Tex. App.--Houston [1st Dist.] Dec. 21, 2006, no = pet.)=20 (trial court appointed DFPS as managing conservator without = findings to=20 support appointment). Because the trial court has already = effectively=20 satisfied the requirements of sections 161.205 and 263.404 of the = Family=20 Code, we need not remand this case to the trial court to render an = order=20 based on the best interest of the child. Therefore, we reverse and = render=20 judgment denying the Department's petition for termination of = Earvin's=20 parental rights.

Naming = the=20 Department the Sole Managing Conservator

In his fourth point of error, = Earvin=20 argues that the evidence is insufficient to support the court's=20 appointment of the Department as the sole managing conservator of=20 S.M.E.

A. Standard of=20 Review

We give wide latitude to a = trial court's=20 decision on custody, control, possession, and visitation matters.=20 Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982);=20 Turner v. Turner, 47 S.W.3d 761, 763 (Tex. App.--Houston = [1st=20 Dist.] 2001, no pet.). We will reverse the trial court's order = regarding=20 custody, control, possession and visitation only if it appears = from the=20 record as a whole that the trial court abused its discretion.=20 Gillespie, 644 S.W.2d at 451. A trial court abuses its = discretion=20 when it acts arbitrarily or unreasonably, without reference to any = guiding=20 rules or principles. Worford v. Stamper, 801 S.W.2d 108, = 109=20 (Tex. 1990). We view the evidence in the light most favorable to = the trial=20 court's decision and indulge every legal presumption in favor of = its=20 judgment. Holley v. Holley, 864 S.W.2d 703,706 (Tex.=20 App.--Houston [1st Dist.] 1993, writ. denied)

B. = Analysis

Earvin argues that because the = evidence=20 is insufficient to terminate his parental rights, "it follows that = it was=20 not in the child's best interest that the Department be appointed = sole=20 managing conservator of" R.K.G. and S.M.E. We do not agree, = however, that=20 reversal of a termination of parental rights requires a reversal = of the=20 appointment of the Department as the sole managing conservator.=20

In its Second Amended Petition, = not only=20 did the Department request that the trial court terminate = appellant's=20 rights under Chapter 161 of the Family Code, the Department also=20 petitioned the court, pursuant to sections 153.005, 153.131 and = 263.404 of=20 the Family Code, to appoint the Department as the sole managing=20 conservator of R.K.G. and S.M.E., alleging that appointment of the = parent=20 would not be in the best interest of the child. The court found = that=20 appointment of Earvin would not be in the best interest of S.M.E. = "because=20 the appointment would significantly impair the [child's] physical = health=20 or emotional development" and appointed the Department as sole = managing=20 conservator. Thus, appointment of the Department as conservator = was=20 independent of the termination of Earvin's parental rights. = Accordingly,=20 appointment of the Department as the sole managing conservator = requires=20 independent analysis.

While there was not clear and = convincing=20 evidence to support a determination that Earvin knowingly placed = or=20 allowed the child to remain in conditions that would endanger the = physical=20 or emotional well-being of the child or demonstrated an = inability=20 to provide S.M.E. with a safe environment, there was sufficient = evidence=20 that Earvin was not willing to provide S.M.E. = with an=20 environment that was in the best interest of the child.

According to the court-ordered = service=20 plan established by the Department, Earvin was required to attend=20 parenting training courses, submit to random drug tests, and = participate=20 in counseling. The record reflects that Earvin did not attend = parenting=20 classes or participate in counseling. He submitted to only one = drug test.=20 Additionally, in the time that S.M.E. was under temporary = conservatorship=20 of the Deparmtent, Earvin visited her only once.

His explanations for his = inaction were=20 that (1) the Department never told him where he could receive drug = evaluations and psychological evaluations, although he testified = that the=20 Department did tell him where he could take parenting classes; (2) = he had=20 to care for his sick mother; and (3) he severely injured his leg = in March=20 of 2004. Earvin testified that his mother had a mild heart attack = and was=20 in the hospital from February 2005 to June 2005 and that he had to = care=20 for her during this time. Earvin sustained a severe injury to his = leg in=20 March of 2004. Subsequently, he had to attend physical therapy two = to=20 three times a week. Earvin was able to get friends to take him to = and from=20 the physical therapy.

The one time Earvin visited = S.M.E. was in=20 December 2004. Another visitation was arranged in February 2005. = Earvin=20 cancelled that meeting because his mother was unable to attend and = he had=20 wanted her to come along. Earvin testified that he wanted to = reschedule=20 the visitation but that he "never did get around to it." According = to=20 Earvin's own testimony, he was able to care for his mother in the = hospital=20 and attend physical therapy for his leg, but was unable to = schedule and=20 attend drug evaluations, psychological evaluations, parenting = classes, or=20 visitations with his daughter. The trier of fact is the exclusive = judge of=20 the credibility of the witnesses and the weight to be given to = their=20 testimony. Nordstrom v.Nordstrom, 965 S.W.2d 575, 580 = (Tex.=20 App.--Houston [1st Dist.] 1997, pet. denied). It was entirely = within the=20 trial court's discretion to determine that Earvin was not willing = to=20 provide an environment conducive to his daughter's physical health = and=20 emotional development and that appointment of the Department as = sole=20 managing conservator was in the best interest of the = child.

Viewing all the evidence in a = light most=20 favorable to the trial court's decision, we cannot say that the = trial=20 court's judgment was arbitrary or unreasonable. Accordingly, we = hold that=20 the trial court did not abuse its discretion in appointing the = Department=20 as the sole managing conservator of S.M.E.

We overrule Earvin's fourth = point of=20 error.

CONCLUSION

We affirm the portion of the = decree=20 assigning the Department as the sole managing conservator of = S.M.E.=20 See Tex. Fam. Code Ann. =A7 263.404. We reverse the = portions of the=20 decree related to the termination of Earvin's parental rights and = render=20 judgment denying the Department's petition for termination of = Earvin's=20 parental rights. See id. =A7161.205.

Laura Carter Higley

Justice

Panel consists of Justices = Jennings,=20 Hanks, and Higley.

Justice Jennings, concurring.=20

1. Because Earvin's first point of error = disposes of=20 his second and third points of error, we need not reach=20 them.

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FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .TextLargeBlackcenter { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: center } .TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } A.TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } .TextRed { FONT-WEIGHT: normal; FONT-SIZE: 12pt; COLOR: red; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } .TextHidenGray { FONT-SIZE: 0pt; COLOR: #ebebe1; LINE-HEIGHT: normal; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif; TEXT-ALIGN: left } .Time { FONT-WEIGHT: bold; FONT-SIZE: 10px; COLOR: red; LINE-HEIGHT: 4em; = FONT-FAMILY: Arial, Helvetica, sans-serif; TEXT-ALIGN: center } ------=_NextPart_000_0000_01C76B01.67E3A520--